Living Will in Florida

A living will is one of the most important legal documents a person can create, yet it is also one of the most frequently overlooked. In Florida, a living will is a written advance directive that allows you to express your wishes regarding end-of-life medical treatment in the event you become incapacitated and unable to communicate those wishes yourself. Governed by Florida Statutes Chapter 765, the Florida Life-Prolonging Procedure Act, a living will provides guidance to your healthcare providers and loved ones during some of the most difficult moments a family can face.

What Is a Living Will Under Florida Law?

Under F.S. 765.101(11), a living will is defined as a witnessed written document or oral statement in which instructions are given by a principal regarding the provision, withholding, or withdrawal of life-prolonging procedures in the event of a terminal condition, end-stage condition, or persistent vegetative state. The living will takes effect only when the principal is no longer able to make their own medical decisions and has been diagnosed with one of the qualifying conditions.

It is important to distinguish a living will from a last will and testament. A last will and testament governs the disposition of your property after death. A living will, by contrast, governs medical decisions while you are still alive but unable to communicate. The two documents serve entirely different purposes and are governed by different areas of Florida law.

What a Living Will Covers

A Florida living will addresses your wishes regarding life-prolonging procedures in three specific medical situations:

Terminal Condition

Under F.S. 765.101(17), a terminal condition is a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death. If you are diagnosed with a terminal condition and cannot communicate, your living will directs your healthcare providers on whether to continue, withhold, or withdraw life-prolonging procedures.

End-Stage Condition

An end-stage condition under F.S. 765.101(4) is a condition caused by injury, disease, or illness that has resulted in severe and permanent deterioration, indicated by incompetency and complete physical dependency, for which treatment of the irreversible condition would be medically ineffective. This includes advanced organ failure and similar conditions where medical intervention cannot restore function.

Persistent Vegetative State

Under F.S. 765.101(12), a persistent vegetative state is a permanent and irreversible condition of unconsciousness in which there is an absence of voluntary action or cognitive behavior and an inability to communicate or interact purposefully with the environment. A person in a persistent vegetative state may exhibit reflexive responses but lacks awareness.

Life-Prolonging Procedures

The term "life-prolonging procedure" is specifically defined under F.S. 765.101(10) as any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The definition specifically excludes the administration of medication or the performance of any medical procedure deemed necessary to provide comfort care or to alleviate pain.

Common life-prolonging procedures that may be addressed in a Florida living will include:

• Mechanical ventilation — the use of a breathing machine to sustain respiration;
• Artificial nutrition and hydration — feeding tubes, IV fluids, and other methods of providing sustenance when the patient cannot eat or drink on their own;
• Cardiopulmonary resuscitation (CPR) — efforts to restart the heart and breathing after cardiac arrest;
• Dialysis — mechanical filtering of the blood when the kidneys can no longer function;
• Blood transfusions — replacement of blood or blood products; and
• Antibiotics and other medications — when used not for comfort but to prolong life in the context of a qualifying condition.

Your living will may direct that all life-prolonging procedures be withheld or withdrawn, or it may specify which procedures you do or do not want. The more specific your instructions, the clearer the guidance for your healthcare providers and family.

Relationship to Healthcare Surrogate Designation

A living will works in conjunction with, but is distinct from, a healthcare surrogate designation. Under F.S. 765.202, you may designate a healthcare surrogate — a person authorized to make healthcare decisions on your behalf if you become incapacitated. While the living will provides your specific instructions about end-of-life care, the healthcare surrogate is the person responsible for ensuring those instructions are followed and for making other medical decisions that may not be covered by the living will.

If you have both a living will and a healthcare surrogate designation, the surrogate is required under F.S. 765.205 to make decisions consistent with your known wishes as expressed in the living will. If a situation arises that is not addressed by the living will, the surrogate must act in your best interest, taking into account your values, beliefs, and prior statements about medical care.

If you do not designate a healthcare surrogate, Florida law provides a statutory list of individuals who may make healthcare decisions on your behalf under F.S. 765.401, known as the proxy. The statutory order is: (1) a judicially appointed guardian, (2) the patient's spouse, (3) an adult child or a majority of adult children who are reasonably available, (4) a parent, (5) an adult sibling or a majority of adult siblings who are reasonably available, (6) an adult relative who has exhibited special care and concern, and (7) a close friend. Relying on this statutory hierarchy can create uncertainty and conflict, which is why designating a specific healthcare surrogate is strongly recommended.

How to Create a Valid Living Will in Florida

To be valid under Florida law, a living will must meet certain requirements:

• The principal must be competent — the person creating the living will must be a competent adult at the time of execution;
• The document must be in writing — while Florida law permits oral declarations in limited circumstances, a written living will is far more reliable and enforceable;
• The document must be signed by the principal — or by another person in the principal's presence and at the principal's direction if the principal is physically unable to sign;
• The document must be witnessed by two witnesses — at least one of whom must not be a spouse or blood relative of the principal; and
• Notarization is recommended but not required — while Florida law does not require notarization for a living will, having the document notarized adds an additional layer of authentication and may facilitate acceptance by healthcare providers.

Florida does not require a specific statutory form for a living will, although F.S. 765.303 provides a suggested form. You are free to use a different form or to customize your living will to address your specific wishes, so long as the document meets the execution requirements described above.

When a Living Will Takes Effect

A living will does not take effect simply because you become ill or incapacitated. Under Florida law, a living will becomes operative only when two conditions are met:

1. The principal is determined by the attending physician to lack the capacity to make healthcare decisions; and
2. The principal has been diagnosed with a terminal condition, an end-stage condition, or a persistent vegetative state.

Until both conditions are present, your healthcare decisions continue to be made by you directly, or by your healthcare surrogate if you lack capacity but do not have a qualifying condition. This ensures that a living will does not prematurely limit your medical options in situations where recovery is possible.

Revoking or Amending a Living Will

Under F.S. 765.104, you may revoke your living will at any time by:

• Signing a written revocation;
• Physically destroying the document;
• Making an oral expression of intent to revoke; or
• Executing a new living will that is materially different from the prior one.

A revocation is effective immediately upon communication to the healthcare provider. You do not need to be competent to revoke a living will — Florida law recognizes that a person who was competent when they created the living will may revoke it even after losing capacity, so long as the revocation is clearly communicated. If you wish to amend your living will rather than revoke it entirely, the safest approach is to execute a new document that supersedes the prior one.

HIPAA Authorization and Living Wills

When creating a living will and healthcare surrogate designation, it is advisable to include a HIPAA authorization that permits your healthcare surrogate and other designated individuals to access your protected health information. Without a HIPAA authorization, healthcare providers may be restricted from sharing your medical information with the people who need it to make decisions on your behalf, which can delay care and create confusion during a medical crisis.

Living Wills as Part of a Comprehensive Estate Plan

A living will should be part of a comprehensive Florida estate plan that also includes a last will and testament or revocable living trust, a healthcare surrogate designation, a durable power of attorney for financial matters, and appropriate beneficiary designations. Together, these documents ensure that your wishes are honored both during your lifetime and after your death, and that the people you trust are empowered to act on your behalf.

Contact a Florida Living Will Attorney

Creating a living will is one of the most important steps you can take to protect yourself and your family. The Law Offices of Albert Goodwin helps individuals and families throughout Florida create comprehensive advance directives, including living wills, healthcare surrogate designations, and related documents. We ensure that your documents comply with Florida law and accurately reflect your wishes. Contact us at 786-522-1411 or email [email protected] to schedule a consultation at our office at 121 Alhambra Plz #1000, Coral Gables, FL 33134.